Too Hyperbolic To Be Believed: How Social Media Is Transforming Libel Law

The Internet has clearly changed how we think about facts and truth, as the Stormy Daniels versus President Donald Trump case illustrates.

Libel is the tort that covers false and highly damaging statements about one's reputation. Key issues in libel law, like falsity, and what constitutes a highly damaging statement, are based on the mores and understandings of the time in which the statements were made. Social media — and President Trump — are changing those understandings.

In pre-social media, pre-Trump times, if someone accused you of knowingly lying about crucial facts, that would probably be defamatory. So Stormy Daniels' case against Trump, based on those circumstances, seemed credible. Trump tweeted that a key part of her story, about being threatened, was false. He accused her of knowingly lying about crucial facts.

But the court, in assessing Stephanie Clifford (Stormy Daniels' real name) versus Donald Trump, considered how people today think about accusations in social media, and (less explicitly) how they think about accusations by President Trump. A long-standing legal rule instructs courts to consider statements "as a whole in light of the surrounding circumstances and based on how a person of ordinary intelligence would perceive it."

Initially, the statements appear to be factual claims — essentially, accusations that Ms. Clifford knowingly lied about an important matter. This can be proved true or false, and that's a key indicator of a factual claim. But looking at the context, and some of the words used, the court went on to find Trump's statements to be "rhetorical hyperbole" — extravagant exaggerations that no one would be likely to take literally. For that reason, and because of the political-campaign context in which the tweets were made, the court found the statements to be "opinions" and not facts, and hence not actionable under libel law.

This is a change in libel law. While context has always been important in interpretation, and the "rhetorical hyperbole" exception has been recognized for more than 40 years, until recently courts didn't take these doctrines so far as to exempt such specific accusations. The "rhetorical hyperbole" case, for example, involved a claim of "blackmail" by a developer who opposed a city council's limitations on a proposed real estate development. It's practically impossible to take that accusation as a literal accusation. Trump's claim that Ms. Clifford lied about her claim of being...